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▇▇▇▇▇▇ DEVELOPMENT CORPORATION II, INC.
(a Delaware corporation)
DURA PHARMACEUTICALS, INC.
(a Delaware corporation)
Units
---------
Each Unit Consisting of
One Share of Common Stock of ▇▇▇▇▇▇ Development Corporation II, Inc.
and One Warrant
to Purchase One-Fourth of One Share of Common Stock of Dura
Pharmaceuticals, Inc.
INTERNATIONAL PURCHASE AGREEMENT
Dated: , 1997
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TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Representations and Warranties . . . . . . . . . . . . . . 4
(a) Representations and Warranties by the Companies. . . . . . 4
(i) Compliance with Registration Requirements . . . . 5
(ii) Incorporated Documents. . . . . . . . . . . . . . 5
(iii) Independent Accountants . . . . . . . . . . . . . 6
(iv) Financial Statements. . . . . . . . . . . . . . . 6
(v) No Material Adverse Change in Business. . . . . . 7
(vi) Good Standing of the Companies. . . . . . . . . . 7
(vii) Good Standing of Subsidiaries . . . . . . . . . . 8
(viii) Capitalization. . . . . . . . . . . . . . . . . . 8
(ix) Authorization of Agreements . . . . . . . . . . . 9
(x) Authorization and Description of Units. . . . . . 10
(xi) Registration or Similar Rights Waived . . . . . . 11
(xii) Absence of Defaults and Conflicts . . . . . . . . 11
(xiii) Compliance with Laws. . . . . . . . . . . . . . . 12
(xiv) Absence of Labor Dispute. . . . . . . . . . . . . 12
(xv) Absence of Proceedings. . . . . . . . . . . . . . 12
(xvi) Accuracy of Exhibits. . . . . . . . . . . . . . . 13
(xvii) Possession of Intellectual Property . . . . . . . 13
(xviii) Absence of Further Requirements . . . . . . . . . 14
(xix) Possession of Licenses and Permits. . . . . . . . 14
(xx) Title to Property . . . . . . . . . . . . . . . . 14
(xxi) Compliance with Cuba Act. . . . . . . . . . . . . 15
(xxii) Investment Company Act. . . . . . . . . . . . . . 15
(xxiii) Environmental Laws. . . . . . . . . . . . . . . . 15
(xxiv) Taxes . . . . . . . . . . . . . . . . . . . . . . 15
(xxv) Insurance . . . . . . . . . . . . . . . . . . . . 16
(xxvi) Accounting Controls . . . . . . . . . . . . . . . 16
(xxvii) Lock-up Agreements. . . . . . . . . . . . . . . . 16
(xxviii) Affiliate Transactions. . . . . . . . . . . . . . 16
(xxix) Distribution of Prospectuses. . . . . . . . . . . 16
(b) Officer's Certificates . . . . . . . . . . . . . . . . . . 17
SECTION 2. Sale and Delivery to International Managers; Closing . . . 17
(a) Initial Units. . . . . . . . . . . . . . . . . . . . . . . 17
(b) Option Units . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Payment . . . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Denominations; Registration. . . . . . . . . . . . . . . . 18
SECTION 3. Covenants of the Companies . . . . . . . . . . . . . . . . 18
(a) Compliance with Securities Regulations and Commission
Requests . . . . . . . . . . . . . . . . . . . . . . . . . 18
i
(b) Filing of Amendments . . . . . . . . . . . . . . . . . . . 19
(c) Delivery of Registration Statements. . . . . . . . . . . . 19
(d) Delivery of Prospectuses . . . . . . . . . . . . . . . . . 19
(e) Continued Compliance with Securities Laws. . . . . . . . . 20
(f) Blue Sky Qualifications. . . . . . . . . . . . . . . . . . 20
(g) Rule 158 . . . . . . . . . . . . . . . . . . . . . . . . . 20
(h) Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . 21
(i) Listing. . . . . . . . . . . . . . . . . . . . . . . . . . 21
(j) Restriction on Sale of Dura Common Stock . . . . . . . . . 21
(k) Reporting Requirements . . . . . . . . . . . . . . . . . . 21
SECTION 4. Payment of Expenses. . . . . . . . . . . . . . . . . . . . 22
(a) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 22
(b) Termination of Agreement . . . . . . . . . . . . . . . . . 22
SECTION 5. Conditions of International Managers' Obligations. . . . . 22
(a) Effectiveness of Registration Statement. . . . . . . . . . 22
(b) Opinion of Counsel for the Companies . . . . . . . . . . . 23
(c) Opinion of Patent Counsel for the Companies. . . . . . . . 23
(d) Opinion of Regulatory Counsel for the Companies. . . . . . 23
(e) Opinion of Counsel for the International Managers. . . . . 23
(f) Officers' Certificate. . . . . . . . . . . . . . . . . . . 23
(g) Accountants' Comfort Letters . . . . . . . . . . . . . . . 24
(h) Bring-down Comfort Letters . . . . . . . . . . . . . . . . 24
(i) Approval of Listing. . . . . . . . . . . . . . . . . . . . 24
(j) No Objection . . . . . . . . . . . . . . . . . . . . . . . 24
(k) Lock-up Agreements . . . . . . . . . . . . . . . . . . . . 24
(l) Purchase of Initial U.S. Units . . . . . . . . . . . . . . 24
(m) Conditions to Purchase of International Option Units . . . 25
(i) Officers' Certificate. . . . . . . . . . . . . . . 25
(ii) Opinions of Counsel for the Companies. . . . . . . 25
(iii) Opinion of Counsel for the International Managers. 25
(iv) Bring-down Comfort Letters . . . . . . . . . . . . 25
(n) Additional Documents. . . . . . . . . . . . . . . . . . . 25
(o) Termination of Agreement . . . . . . . . . . . . . . . . . 26
SECTION 6. Indemnification. . . . . . . . . . . . . . . . . . . . . . 26
(a) Indemnification of International Managers. . . . . . . . . 26
(b) Indemnification of the Companies and Directors
and Officers . . . . . . . . . . . . . . . . . . . . . . . 27
(c) Actions against Parties; Notification. . . . . . . . . . . 27
(d) Settlement without Consent if Failure to Reimburse . . . . 28
SECTION 7. Contribution . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 9. Termination of Agreement . . . . . . . . . . . . . . . . . 30
(a) Termination; General . . . . . . . . . . . . . . . . . . . 30
(b) Liabilities. . . . . . . . . . . . . . . . . . . . . . . . 30
ii
SECTION 10. Default by One or More of the International Managers. . . 30
SECTION 11. Default by the Companies. . . . . . . . . . . . . . . . . 31
SECTION 12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 13. Parties . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 14. GOVERNING LAW AND TIME. . . . . . . . . . . . . . . . . . 32
SECTION 15. Effect of Headings. . . . . . . . . . . . . . . . . . . . 32
SCHEDULES
Schedule A - List of International Managers. . . . . . . . . . . . Sch A-1
Schedule B - Pricing Information . . . . . . . . . . . . . . . . . Sch B-1
Schedule C - List of Persons and Entities Subject to Lock-up . . . Sch C-1
EXHIBITS
Exhibit A - Form of Opinion of Counsel for Dura.. . . . . . . . . . . A-1
Exhibit B - Form of Opinion of Intellectual Property
Counsel for Dura. . . . . . . . . . . . . . . . . . . . B-1
Exhibit C - Form of Opinion of U.S. Regulatory Counsel
for the Companies . . . . . . . . . . . . . . . . . . . C-1
Exhibit D - Form of Lock-up Letter. . . . . . . . . . . . . . . . . . D-1
iii
▇▇▇▇▇▇ DEVELOPMENT CORPORATION II, INC.
(a Delaware corporation)
DURA PHARMACEUTICALS, INC.
(a Delaware corporation)
Units
---------
Each Unit Consisting of
One Share of Common Stock of ▇▇▇▇▇▇ Development Corporation II, Inc.
and One Warrant
to Purchase One-Fourth of One Share of Common Stock of Dura
Pharmaceuticals, Inc.
INTERNATIONAL PURCHASE AGREEMENT
, 1997
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▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
as Lead Managers of the several International
Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Development Corporation II, Inc., a Delaware corporation ("SDC II"),
and Dura Pharmaceuticals, Inc., a Delaware corporation ("Dura" and, together
with SDC II, the "Companies"), confirm their respective agreements with ▇▇▇▇▇▇▇
▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other International
Underwriters named in Schedule A hereto (collectively, the "International
Managers," which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation are acting as
representatives (in such capacity, the "Lead Managers"), with respect to the
issue and sale by the Companies, and the purchase by the International Managers,
acting severally and not jointly, of the respective number of units set forth in
said Schedule A, each unit composed of one share of common stock, par value
$.001 per share, of SDC II ("SDC II Common Stock") and one warrant (each a
"Warrant") that will entitle the registered owner thereof to purchase one-fourth
of one share of common stock, par value $.001 per share, of Dura ("Dura Common
Stock") at a per share exercise price as set forth in Schedule A hereto,
pursuant to and subject to certain adjustments as set forth in the Warrant
certificate to be issued as part of the Unit Certificate (as hereinafter
defined), and with respect to the grant by SDC II and Dura to the International
Managers, acting severally and not jointly, of the option described in Section
2(b) hereof to purchase all or any part of _________ additional units to cover
over-allotments, if any. The SDC II Common Stock and the Warrants will be
paired for sale as units by SDC II and Dura and then sold to the International
Managers. The aforesaid _________ units (the "Initial International Units") to
be purchased by the International Managers and all or any part of the _________
units subject to the option described in Section 2(b) (the "International Option
Units") are hereinafter called, collectively, the "International Units."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of ______ units composed of one
share of SDC II Common Stock and one Warrant (the "Initial U.S. Units") through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters") for which ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation are acting
as representatives (the "U.S. Representatives") and the grant by the Company to
the U.S. Underwriters, acting severally and not jointly, of an option to
purchase all or any part of the U.S. Underwriters' pro rata portion of up to
______ additional units composed of one share of SDC II Common Stock and one
Warrant solely to cover over-allotments, if any (the "U.S. Option Units" and,
together with the International Option Units, the "Option Units"). The Initial
U.S. Units and the U.S. Option Units are hereinafter called the "U.S. Units."
It is understood that the Company is not obligated to sell and the International
Managers are not obligated to purchase, any Initial International Units unless
all of the Initial U.S. Units are contemporaneously purchased by the U.S.
Underwriters.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Units and the Initial
International Units are hereinafter collectively called the "Initial Units", and
the U.S. Units and the International Units are hereinafter collectively called
the "Units."
The Underwriters concurrently will enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
2
The Companies understand that the International Managers propose to make a
public offering of the International Units as soon as the Lead Managers deem
advisable after this Agreement has been executed and delivered.
Each Unit initially will be represented by a certificate representing one
or more Warrants and one or more shares of SDC II Common Stock (a "Unit
Certificate"). Each Unit will be transferable only as a whole and as described
in the Prospectus (as hereinafter defined) through December 31, 1999 or such
earlier date on which the Purchase Option (as defined in the Prospectus) is
exercised or expires unexercised, after which date the Warrants and the SDC II
Common Stock will trade separately. The SDC II Common Stock, the Warrants and
the U.S. Units are more fully described in the Registration Statement (as
hereinafter defined) and the Prospectus.
The Companies have filed with the Securities and Exchange Commission (the
"Commission") a combined registration statement (Nos. 333-37673 and
333-37673-01) covering the registration of the U.S. Units under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses, (a) with respect to SDC II, on Form S-1, relating to
the SDC II Common Stock comprising a portion of the U.S. Units, and (b) with
respect to Dura, on Form S-3, relating to the Warrants comprising a portion of
the U.S. Units, the Dura Common Stock underlying the Warrants and the Dura
Common Stock issuable upon exercise of the Purchase Option. Promptly after
execution and delivery of this Agreement, the Companies will either (i) prepare
and file a prospectus in accordance with the provisions of Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
1933 Act Regulations or (ii) if the Companies have elected to rely upon Rule 434
("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a "Term
Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Units: one relating to the U.S. Units (the "Form of U.S. Prospectus") and
one relating to the International Units (the "Form of International
Prospectus"). The Form of International Prospectus is identical to the Form of
U.S. Prospectus, except for the front cover and back cover pages and the
information under the caption "Underwriting" and the inclusion in the Form of
International Prospectus of a section under the caption "Certain United States
Tax Considerations for Non-United States Holders." The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (A) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (B) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto,
schedules thereto, if any, and the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act,
3
at the time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final Form of U.S.
Prospectus and the final Form of International Prospectus, including the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, in the forms first furnished to the Underwriters for use in
connection with the offering of the Units (the "Unit Offering") are herein
called the "U.S. Prospectus" and the "International Prospectus," respectively,
and, collectively, the "Prospectuses." If Rule 434 is relied on, the term "U.S.
Prospectus" and "International Prospectus" shall refer to the preliminary U.S.
Prospectus dated _________ , 1997 and the preliminary International Prospectus
dated _________ , 1997, respectively, each together with the applicable Term
Sheet and all references in this Agreement to the date of such Prospectuses
shall mean the date of the applicable Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the U.S. Prospectus, the International Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
Prior to the Closing Time (as defined), Dura intends to acquire all of the
outstanding capital stock of ▇▇▇▇▇▇ Development Corporation ("SDC") for an
aggregate purchase price of approximately $___________, payable in cash, shares
of Dura Common Stock, or any combination thereof (the "SDC Purchase").
All references in this Agreement to financial statements and schedules and
other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus (including the Form of U.S.
Prospectus and the Form of International Prospectus) or the Prospectuses (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus
(including the Form of U.S. Prospectus and the Form of International Prospectus)
or the Prospectuses, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectuses shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectuses, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANIES. The Companies
jointly and severally represent and warrant to each International Manager as of
the date hereof, as of the Closing Time referred to in Section 2(c) hereof, and
as of each Date of Delivery (if any) referred to in Section 2(b) hereof, and
agree with each International Manager, as follows:
4
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Dura meets the
requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Companies, are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto become
effective and at the Closing Time (and, if any International Option Units
are purchased, at the Date of Delivery), the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto, at the time the Prospectuses or any
amendments or supplements were issued and at the Closing Time (and, if any
International Option Units are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Companies will comply with
the requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made in reliance
upon and in conformity with information furnished to the Companies in
writing by any International Manager through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for
use in the Registration Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) INCORPORATED DOCUMENTS. The documents incorporated or deemed
to be incorporated by reference in the Registration Statement and the
Prospectuses, when they became effective or at the time they were or
hereafter are filed with the Commission, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the Securities Exchange Act of 1934 (the "1934 Act") and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), as
5
applicable, and, when read together with the other information in the
Prospectuses, at the time the Registration Statement became effective, at
the time the Prospectuses were issued and at the Closing Time (and, if any
U.S. Option Units are purchased, at the Date of Delivery), did not and will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(iii) INDEPENDENT ACCOUNTANTS. Deloitte & Touche LLP, which are
reporting upon the audited financial statements and supporting schedules
with respect to Dura, Spiros Development Corporation ("SDC") and SDC II
incorporated by reference or included in the Registration Statement, are
independent accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iv) FINANCIAL STATEMENTS. (A) The financial statements of Dura
incorporated by reference or included in the Registration Statement and the
Prospectuses, together with the related schedules and notes, present fairly
the financial position of Dura (and, for relevant periods consistent with
the Commission's rules and regulations, Dura's Subsidiaries (as defined in
clause (vii) below)) at the dates indicated and the statements of
operations, shareholders' equity and cash flows of Dura (and, for relevant
periods consistent with the Commission's rules and regulations, each of the
Subsidiaries) for the periods specified; except as otherwise stated in the
Registration Statement, said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
selected financial data and summary financial information for Dura and the
Subsidiaries included in the Prospectuses present fairly in accordance with
GAAP the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements of Dura and the
Subsidiaries included in the Registration Statement. Other than the
financial statements and schedules referred to in this paragraph (iv), no
other financial statements or schedules are required to be included in the
Registration Statement or incorporated therein by reference.
(B) The financial statements of SDC included in the Registration
Statement and the Prospectuses, together with the related schedules and
notes, present fairly the financial position of SDC at the dates indicated
and the statements of operations, shareholders' equity and cash flows of
SDC for the periods specified; EXCEPT AS OTHERWISE STATED IN THE
REGISTRATION STATEMENT, said financial statements have been prepared in
conformity with GAAP applied on a consistent basis throughout the periods
involved.
(C) The financial statements of SDC II included in the Registration
Statement and the Prospectuses, together with the related schedules and
notes, present fairly the financial position of SDC II at the date
indicated; except as otherwise stated in the
6
Registration Statement, said financial statements have been prepared in
conformity with GAAP.
(D) The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectuses or
incorporated therein by reference present fairly in accordance with GAAP
the information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(v) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of Dura and the
Subsidiaries (as defined below), considered as one enterprise, whether or
not arising in the ordinary course of business (a "Dura Material Adverse
Effect"), (B) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of SDC, whether or not arising in the ordinary course of business
(an "SDC Material Adverse Effect"), (C) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of SDC II, whether or not arising in
the ordinary course of business (an "SDC II Material Adverse Effect"), (D)
there have been no transactions entered into by Dura or any Subsidiary, SDC
or SDC II, other than in the ordinary course of business, which are
material with respect to Dura and the Subsidiaries, considered as one
enterprise, SDC or SDC II, respectively, and (D) there has been no dividend
or distribution of any kind declared, paid or made by each of SDC, SDC II
or Dura, on any class of its respective capital stock. As used in this
Agreement on the date hereof, a "Material Adverse Effect" shall mean both a
Dura Material Adverse Effect and an SDC Material Adverse Effect.
(vi) GOOD STANDING OF THE COMPANIES. (A) Dura has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its obligations
under this Agreement; and Dura is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to
so qualify or to be in good standing would not result in a Dura Material
Adverse Effect.
7
(B) SDC II has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectuses and to enter
into and perform its obligations under this Agreement; and SDC II is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be in good standing
would not result in an SDC II Material Adverse Effect.
(vii) GOOD STANDING OF SUBSIDIARIES. Dura Delivery Systems, Inc., a
Delaware corporation ("DDSI"), Health Script Pharmacy Services, Inc., a
Colorado corporation ("Health Script"), Healthco Solutions, Inc., a
Colorado corporation ("Healthco"), HS Wholesaler, Inc., a Colorado
corporation ("HS Wholesaler"), Scandi Acquisition Corp., a Delaware
corporation ("Scandi"), DCI, Ltd., a corporation organized under the laws
of the Cayman Islands ("DCI") Dura (Bermuda) Trading Company Ltd., a
corporation organized under the laws of Bermuda ("Dura (Bermuda)") are the
only subsidiaries of Dura (DDSI, Health Script, Healthco, HS Wholesaler,
DCI, Dura (Bermuda) and, unless otherwise indicated, SDC, are hereinafter
referred to as the "Subsidiaries"). Except for the Subsidiaries, neither
the Company nor any Subsidiary owns any shares of stock or any other equity
securities of any corporation or has any equity interests in any firm,
partnership, association or other entity other than 775,193 shares of
Common Stock of Trega Biosciences, Inc. and 754,799 shares of Common Stock
of Cosmederm Technologies, Inc., each held by Dura. Each Subsidiary has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectuses and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and (other than with respect to
SDC) is owned solely by Dura or another Subsidiary free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Subsidiary was
issued in violation of the preemptive or similar rights of any
securityholder of such Subsidiary arising by operation of law, under the
charter or by-laws of such Subsidiary or under any agreement to which Dura
or such Subsidiary is a party.
(B) Upon the consummation of the SDC Purchase, all of the
outstanding shares of capital stock of SDC will be owned by Dura free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
8
(viii) CAPITALIZATION. The authorized, issued and outstanding capital
stock of each of Dura and SDC II is as set forth in the Prospectuses under
the column "Actual" under the captions "Dura Capitalization" and "▇▇▇▇▇▇
Corp. II Capitalization", respectively (except, in the case of Dura, for
subsequent issuances, if any, pursuant to reservations, agreements or
employee benefit plans referred to in the Prospectuses or incorporated by
reference therein or pursuant to the exercise of convertible securities,
warrants or options referred to in the Prospectuses or incorporated by
reference therein). The shares of issued and outstanding capital stock of
each of Dura and SDC II have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of
capital stock of Dura or SDC II was issued in violation of the preemptive
or other similar rights of any securityholder of Dura or SDC II,
respectively, arising by operation of law, under the charter or by-laws of
Dura or SDC II, as the case may be, or under any agreement to which Dura or
SDC II is a party. Except as disclosed in the Prospectuses or incorporated
by reference therein, there are no outstanding options, warrants or other
rights calling for the issuance of, and no commitments, plans or
arrangements to issue, any shares of capital stock of Dura, SDC II or any
Subsidiary or any security convertible into or exchangeable for capital
stock of Dura, SDC II or any Subsidiary.
(ix) AUTHORIZATION OF AGREEMENTS. (A) This Agreement and the
International Purchase Agreement have been duly authorized, executed and
delivered by each of Dura and SDC II.
(B) The Warrant Agreement (as hereinafter defined) has been duly
authorized by Dura, and when executed and delivered by Dura and the Warrant
Agent thereunder, will constitute a valid and binding agreement of Dura,
enforceable against Dura in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(C) Each of the Development Agreement, the Technology Agreement,
the Albuterol and Product Option Agreement, the Manufacturing and Marketing
Agreement and the Services Agreement (each as defined in the Prospectuses,
and collectively referred to herein as the "Transaction Agreements") has
been duly authorized by Dura and SDC II and, in the case of the Technology
Agreement, Dura, SDC II, SDC and DDSI, and when executed and delivered by
Dura and SDC II, and, in the case of the Technology Agreement, Dura, SDC
II, SDC and DDSI, will constitute valid and binding agreements of each of
Dura, SDC II, SDC and DDSI, as the case may be, enforceable against Dura,
SDC II, SDC and DDSI in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general
9
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(x) AUTHORIZATION AND DESCRIPTION OF UNITS. (A) The SDC II Common
Stock to be issued by SDC II as a component of the Units has been duly
authorized for issuance and sale to the U.S. Underwriters pursuant to this
Agreement and to the International Managers pursuant to the International
Purchase Agreement, respectively, and, when issued and delivered by SDC II
against payment of the purchase price therefor as provided in this
Agreement and the International Purchase Agreement, respectively, will be
validly issued, fully paid and non-assessable; the SDC II Common Stock
conforms in all material respects to the statements relating thereto
contained in the Prospectuses and such description conforms to the rights
set forth in the instruments defining the same; no holder of SDC II Common
Stock will be subject to personal liability by reason of being such a
holder; and the issuance of the SDC II Common Stock is not subject to the
preemptive or other similar rights of any securityholder of SDC II.
(B) The Warrants to be issued as a component of the Units have been
duly authorized by Dura for issuance and sale to the U.S. Underwriters
pursuant to this Agreement and to the International Managers pursuant to
the International Purchase Agreement, respectively, and, when duly
executed, issued and delivered by Dura and duly countersigned by the
Warrant Agent (as hereinafter defined) in the manner provided for in the
Warrant Agreement (the "Warrant Agreement") to be entered into between Dura
and ▇▇▇▇▇ ▇▇▇▇▇▇ Shareholder Services, as warrant agent (the "Warrant
Agent"), and, when issued and delivered by Dura against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of Dura, entitled to the benefits of the
Warrant Agreement, and will be enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); such Warrants are not
subject to the preemptive rights of any stockholder of Dura and all
corporate action required to be taken for the authorization, issue and sale
of such Warrants has been validly and sufficiently taken.
(C) Dura shall have available such number of shares of Dura Common
Stock deliverable upon exercise of the Warrants as is sufficient to permit
the exercise in full of the Warrants. All shares of Dura Common Stock
issued upon exercise of the Warrants, when issued and paid for in
accordance with the terms of the Warrant Agreement, will be duly
authorized, validly issued, fully paid and nonassessable; shares of Dura
Common Stock are not subject to the preemptive rights of any stockholder of
Dura; and all corporate action required to be taken for such authorization,
issue and sale of the Dura Common Stock will have been validly and
sufficiently taken upon the issuance of the Warrants; such
10
shares of Dura Common Stock conform in all material respects to the
descriptions thereof contained or incorporated by reference in the
Prospectuses and all corporate action required to be taken for the
authorization, issue and sale of such shares of Dura Common Stock has been
validly and sufficiently taken.
(xi) REGISTRATION OR SIMILAR RIGHTS WAIVED. There are no persons
with registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the
Company under the 1933 Act who have not waived such rights.
(xii) ABSENCE OF DEFAULTS AND CONFLICTS. (A) Neither Dura nor any
Subsidiary is in violation of its charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which Dura or any Subsidiary is a party or by which it or any of them may
be bound, or to which any of the property or assets of Dura or any
Subsidiary is subject (collectively, "Agreements and Instruments") except
for such defaults that would not result in a Material Adverse Effect; and
the execution, delivery and performance of each of this Agreement, the U.S.
Purchase Agreement, the Warrant Agreement and the Transaction Agreements by
Dura, SDC and DDSI, as the case may by, the issuance and delivery of the
Warrants and the issuance of shares of Dura Common Stock upon the exercise
of the Warrants and the consummation by Dura, SDC and DDSI, as the case may
be, of the transactions contemplated in this Agreement, the U.S. Purchase
Agreement, the Warrant Agreement and the Transaction Agreements and in the
Registration Statement (including the issuance and sale of the Warrants as
part of the Units) and compliance by Dura, SDC and DDSI, as the case may
be, with their respective obligations under this Agreement, the U.S.
Purchase Agreement, the Warrant Agreement and each of the Transaction
Agreements to which they are a party have been duly authorized by all
necessary corporate action and do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of Dura or any Subsidiary pursuant
to, the Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of Dura or any Subsidiary or any
applicable material law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court, domestic
or foreign, having jurisdiction over Dura or any Subsidiary or any of their
assets, properties or operations. As used herein, a "Repayment Event"
means any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all
or a portion of such indebtedness by Dura or any Subsidiary.
11
(B) SDC II is not in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which SDC II is a party or by which it may be bound, or to
which any of the property or assets of SDC II is subject (collectively,
"SDC II Agreements and Instruments") except for such defaults that would
not result in an SDC II Material Adverse Effect; and the execution,
delivery and performance of each of this Agreement, the International
Purchase Agreement and the Transaction Agreements by SDC II and the
consummation BY SDC II of the transactions contemplated herein, therein and
in the Registration Statement (including the issuance and sale of the SDC
II Common Stock as part of the Units and the use of the proceeds from the
sale of the Units as described in the Prospectuses under the caption "Use
of Proceeds") and compliance by SDC II with its obligations under this
Agreement, the International Purchase Agreement and each of the Transaction
Agreements have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or SDC II Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of SDC II pursuant to, the SDC II Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not result in an SDC II Material Adverse
Effect), nor will such action result in any violation of the provisions of
the charter or by-laws of SDC II or any applicable material law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over SDC II or any of its assets, properties or operations.
As used herein, an "SDC II Repayment Event" means any event or condition
which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by SDC II.
(xiii) COMPLIANCE WITH LAWS. Except as set forth in the Prospectuses,
Dura and the Subsidiaries and SDC II are in compliance in all material
respects with all applicable laws, statutes, ordinances, rules or
regulations, the enforcement of which, individually or in the aggregate,
would be reasonably expected to have a Material Adverse Effect or an SDC II
Material Adverse Effect, as the case may be.
(xiv) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees
of Dura or any Subsidiary exists or, to the knowledge of Dura, is imminent,
and Dura is not aware of any existing or imminent labor disturbance by the
employees of any of its or any Subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Dura Material Adverse Effect or an
SDC II Material Adverse Effect.
12
(xv) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation (except applications for regulatory approval for
marketing of pharmaceutical products) before or brought by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of either Dura or SDC II, threatened against or affecting Dura or
any Subsidiary or SDC II that is required to be disclosed in the
Registration Statement or that might reasonably be expected to have a
Material Adverse Effect, or an SDC II Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets of either Dura and the Subsidiaries (other than SDC),
considered as one enterprise, or SDC II or SDC, as the case may be, or the
consummation of the transactions contemplated in this Agreement, the
International Purchase Agreement, the Warrant Agreement and the Transaction
Agreements or the performance by Dura or SDC II of its obligations
hereunder or thereunder; the aggregate of all pending legal or governmental
proceedings to which Dura or any Subsidiary or SDC II, as the case may be,
is a party or which affect any of their respective property or assets is
subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to its business, could not
reasonably be expected to result in a Material Adverse Effect or an SDC II
Material Adverse Effect, as the case may be.
(xvi) ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement, the
Prospectuses or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been described and filed as
required.
(xvii) POSSESSION OF INTELLECTUAL PROPERTY. (A) Except as set forth
in the Prospectuses, each of Dura and the Subsidiaries owns or possesses
adequate licenses or other rights to use the patents, patent rights,
licenses, inventions, copyrights, know how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), which are necessary for the operation
of their businesses as presently conducted except where the failure to so
own or have the right to use would not have a Material Adverse Effect.
Except as disclosed in the Prospectuses, nothing has come to the attention
of Dura or the Subsidiaries to the effect that (1) any product, process,
method, substance, part or other material presently contemplated to be sold
by or employed by Dura or any of the Subsidiaries in connection with Dura's
or such Subsidiary's business may infringe any patent, trademark, service
▇▇▇▇, trade name, copyright, license or other right owned by others, (2)
there is pending or threatened any claim or litigation against or affecting
Dura and the Subsidiaries contesting their right to sell or use any such
product, process, method, substance, part or other material or (3) there
is, or there is pending, any patent, invention, device, application or any
applicable statute, law, rule, regulation, standard or code, in the case of
each of clause (1), (2) or (3) above, which could have Material Adverse
Effect.
(B) SDC II will, to the extent provided for in the Technology
Agreement, have the right to use all patents, patent rights, licenses,
inventions, copyrights, know how
13
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) owned or
controlled by Dura or the Subsidiaries, which are necessary for the
operation of its business as described in the Prospectuses. SDC II has not
received any notice of proceedings relating to revocation or modification
of any such licenses, permits, certificates, consents, orders, approvals or
authorizations which singularly or in the aggregate, if the subject of an
unfavorable ruling or finding, could have a SDC II Material Adverse Effect.
(xviii) ABSENCE OF FURTHER REQUIREMENTS. (A) No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Companies of their
obligations under this Agreement, the International Purchase Agreement, the
Warrant Agreement and the Transaction Agreements, in connection with the
offering, issuance, sale and delivery of the shares of SDC II Common Stock,
the Warrants or the shares of Dura Common Stock deliverable upon exercise
of the Warrants or the consummation of the transactions contemplated by
this Agreement, the International Purchase Agreement, the Warrant Agreement
and the Transaction Agreements, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations and
foreign or state securities or blue sky laws.
(B) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the consummation by SDC
and DDSI of the transactions contemplated by this agreement, except such as
have already been obtained.
(xix) POSSESSION OF LICENSES AND PERMITS. Dura and the Subsidiaries
and SDC II possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
material to the conduct of the business now operated by Dura, the
Subsidiaries and SDC II, respectively; Dura and the Subsidiaries and SDC II
are in compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect or a SDC II Material Adverse
Effect, as the case may be; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect or a SDC II Material
Adverse Effect, as the case may be; and neither Dura nor any Subsidiary nor
SDC II has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect or an SDC II Material Adverse
Effect; provided, however, that no FDA approval has been received with
respect to products that SDC II currently is not permitted to market.
14
(xx) TITLE TO PROPERTY. Dura and the Subsidiaries have good and
marketable title to all material properties and assets owned by Dura and
the Subsidiaries, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described or incorporated by reference in the
Prospectuses or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by Dura or the affected Subsidiaries,
as the case may be; and all properties held under lease by Dura or any
Subsidiary are held under valid, subsisting and enforceable leases.
(B) SDC II has good and marketable title to all material properties
and assets described in the Prospectuses as owned by it, free and clear of
all mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by SDC II.
(xxi) COMPLIANCE WITH CUBA ACT. Dura has complied with, and is and
will be in compliance with, the provisions of that certain Florida act
relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xxii) INVESTMENT COMPANY ACT. Neither of the Companies is and, upon
the issuance and sale of the Units as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses,
will not be an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxiii) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Dura Material Adverse Effect, (A) neither Dura nor any Subsidiary is in
material violation of any federal, state, local or foreign law, rule,
regulation, ordinance or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) Dura and the
Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or, to the best knowledge of Dura,
threatened
15
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against Dura
or any of the Subsidiaries and (iv) to the best knowledge of Dura, there
are no events or circumstances that could form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting Dura or any
Subsidiary relating to Hazardous Materials or any Environmental Laws.
(xxiv) TAXES. Dura and the Subsidiaries have filed all federal,
state, local and foreign tax returns that are required to be filed or have
duly requested extensions thereof and have paid all taxes required to be
paid by any of them and any related assessments, fines or penalties, except
for any such tax, assessment, fine or penalty that is being contested in
good faith and by appropriate proceedings; and adequate charges, accruals
and reserves have been provided for in the financial statements referred to
in Section 1(a)(iv)(A) above in respect of all federal, state, local and
foreign taxes for all periods as to which the tax liability of Dura or any
Subsidiary has not been finally determined or remains open to examination
by applicable taxing authorities.
(xxv) INSURANCE. Dura and the Subsidiaries carry or are entitled to
the benefits of insurance in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the same
or similar business and all such insurance is in full force and effect.
(xxvi) ACCOUNTING CONTROLS. Dura and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's general and specific authorizations; (B) transactions are
recorded as necessary to permit preparations of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorizations; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(xxvii) LOCK-UP AGREEMENTS. The Companies have obtained and delivered
to the U.S. Underwriters the agreements, in the form of Exhibit D hereto,
of the persons and entities named in Schedule C annexed hereto to the
effect that each such person will not, for a period of 90 days from the
date of this Agreement and except as otherwise provided in their respective
agreement, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or
indirectly, offer to sell, grant any option for the sale of, or otherwise
dispose of any shares of Dura Common Stock or any securities convertible
into or exercisable for shares of Dura Common Stock owned by such person or
entity or with respect to which such person has the power of disposition.
16
(xxviii) AFFILIATE TRANSACTIONS. No relationship, direct or indirect,
exists between or among any of Dura or any affiliate of Dura, on the one
hand, and any director, officer, shareholder, customer or supplier of any
of them, on the other hand, which is required by the 1933 Act or by the
1933 Act Regulations to be described in the Registration Statement or the
Prospectuses and which is not so described or is not described as required
or is not incorporated by reference therein.
(xxix) DISTRIBUTION OF PROSPECTUSES. The Companies have not
distributed and, prior to the later to occur of (A) Closing Time and (B)
completion of the distribution of the Units, will not distribute any
prospectus (as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the Units other
than the Registration Statement, any preliminary prospectus, the
Prospectuses or other materials, if any, permitted by the 1933 Act or by
the 1933 Act Regulations and approved by the U.S. Representatives.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of Dura
or any Subsidiary or SDC II, delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by Dura or SDC II, as the case may be, to each
International Managers as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING.
(a) INITIAL UNITS. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Companies, severally and not jointly, agree to sell to each International
Manager, and each International Manager, severally and not jointly, agrees to
purchase from the Companies, at the price per Unit set forth in Schedule B, the
number of Initial International Units set forth in Schedule A opposite the name
of such International Manager, plus any additional number of Initial
International Units which such International Manager may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) OPTION UNITS. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Companies, acting severally and not jointly, hereby grant an option
to the International Managers, severally and not jointly, to purchase up to an
additional _____________ Units at the same price per Unit set forth in Schedule
B for the Initial International Units. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial International Units
upon notice by the Global Coordinator to the Companies setting forth the number
of International Option Units as to which the several International Managers are
then exercising the option and the time and date of payment and delivery for
such International Option Units. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven full business days after the exercise of
17
said option, nor in any event prior to the Closing Time, as hereinafter defined.
If the option is exercised as to all or any portion of the International Option
Units, each of the International Managers, acting severally and not jointly,
will purchase that proportion of the total number of International Option Units
then being purchased which the number of Initial International Units set forth
in Schedule A opposite the name of such International Managers bears to the
total number of Initial International Units, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional Units.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial U.S. Units shall be made at the offices of
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon by the Global
Coordinator and the Companies, at 7:00 A.M. (California time) on the third
(fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator and the
Companies (such time and date of payment and delivery being herein called
"Closing Time").
In addition, in the event that any or all of the International Option Units
are purchased by the International Managers, payment of the purchase price for,
and delivery of certificates for, such International Option Units shall be made
at the above-mentioned offices, or at such other place as shall be agreed upon
by the Global Coordinator and the Companies, on each Date of Delivery as
specified in the notice from the Global Coordinator to the Companies.
Payment shall be made to the Companies by wire transfer of immediately
available funds to a bank account designated by the Companies against delivery
to the Lead Managers of certificates for the Units to be purchased by them. It
is understood that each International Manager has authorized the Lead Managers,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Units and the International Option
Units, if any, which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and
not as representative of the International Underwriters, may (but shall not be
obligated to) make payment of the purchase price for the Initial International
Units or the International Option Units, if any, to be purchased by any
International Manager whose funds have not been received by the Closing Time or
the relevant Date of Delivery, as the case may be, but such payment shall not
relieve such International Manager from its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
International Units and the International Option Units, if any, shall be in such
denominations and registered in such names as the Lead Managers may request in
writing at least one full business day before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Initial
International Units and the International Option Units, if any, will be made
available for examination and packaging by the International Managers in The
City of New York not later than
18
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANIES. Each of the Companies covenants
with each International Manager as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Companies, subject to Section 3(b), will comply with the requirements
of Rule 430A or Rule 434, as applicable, and will notify the Global
Coordinator immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectuses or any amended
Prospectuses shall have been filed, (ii) of the receipt of any comments
from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectuses or for additional information and (iv) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of
any preliminary prospectus, or of the suspension of the qualification of
the Units for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Companies
will promptly effect the filings necessary pursuant to Rule 424(b) and will
take such steps as they deem necessary to ascertain promptly whether the
form of prospectus transmitted for filing under Rule 424(b) was received
for filing by the Commission and, in the event that it was not, will
promptly file such prospectus. The Companies will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Companies will give the Global
Coordinator notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any
Term Sheet or any amendment, supplement or revision to either the
prospectus included in the Registration Statement at the time it became
effective or to the Prospectuses, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Global Coordinator with copies of
any such documents a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file or use any such
document to which the Global Coordinator or counsel for the International
Managers shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Companies have
furnished or will deliver to the Lead Managers and counsel for the
International Managers, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein) and signed
copies of all consents and certificates of experts, and will also deliver
to the Lead Managers, without charge, a conformed copy of the Registration
Statement as originally
19
filed and of each amendment thereto (without exhibits) for each of the
International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Companies have delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Companies hereby consent to the use of such copies for purposes permitted
by the 1933 Act. The Companies will furnish to each International Manager,
without charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the International Prospectus (as amended or supplemented) as such
International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted
by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Companies will
comply with the 1933 Act and the 1933 Act Regulations and the 1934 Act and
the 1934 Act Regulations so as to permit the completion of the distribution
of the Units as contemplated in this Agreement, the International Purchase
Agreement and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Units, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the International Managers
or for the Companies, to amend the Registration Statement or amend or
supplement any Prospectus in order that the Prospectuses will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time any such Prospectus is
delivered to a purchaser, or if it shall be necessary, in the opinion of
such counsel, at any such time to amend the Registration Statement or amend
or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Companies will promptly
prepare and file with the Commission, subject to Section 3(b), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectuses comply
with such requirements, and the Companies will furnish to the International
Managers such number of copies of such amendment or supplement as the
International Managers may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Companies will use their best
efforts, in cooperation with the International Managers, to qualify the
Units for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Global
Coordinator may designate and to maintain such qualifications in effect for
a period of not less than one year from the later of the effective date of
the
20
Registration Statement and any Rule 462(b) Registration Statement;
PROVIDED, HOWEVER, that neither Dura nor SDC II shall be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Units have been so qualified, the Companies
will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement. The Companies will
also supply the U.S. Representatives with such information as is necessary
for the determination of the legality of the Units for investment under the
laws of such jurisdictions as the U.S. Underwriters may reasonably request.
(g) RULE 158. The Companies will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to
their securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. SDC II will use the net proceeds received by
it from the sale of the Units in the manner specified in the Prospectuses
under "Use of Proceeds."
(i) LISTING. The Companies will use their best efforts to effect
and maintain the quotation of the Units on the Nasdaq National Market and
will file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market of companies that have securities
that are traded in the over-the-counter market and quotations for which are
reported by the Nasdaq National Market.
(j) RESTRICTION ON SALE OF DURA COMMON STOCK. During a period of
90 days from the date of the Prospectuses, Dura will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any shares of
Dura Common Stock or any securities convertible into or exercisable or
exchangeable for shares of Dura Common Stock or file any registration
statement under the 1933 Act with respect to any of the foregoing or (ii)
enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of Dura Common Stock whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by
delivery of shares of Dura Common Stock or such other securities, in cash
or otherwise. The foregoing sentence shall not apply to (A) the Units to
be sold hereunder or under the International Purchase Agreement, (B) any
shares of Dura Common Stock issued by Dura upon the exercise of an option
or warrant or the conversion of a security outstanding on the date hereof
and referred to in the Prospectuses, (C) any shares of Dura Common Stock
issued or options to purchase
21
Dura Common Stock granted pursuant to existing employee benefit plans of
Dura referred to in the Prospectuses, (D) any shares of Dura Common Stock
issued to securityholders of Scandipharm, Inc., or (E) any shares of Dura
Common Stock issued to stockholders of SDC in connection with the
acquisition of all of the outstanding stock of SDC pursuant to a
registration statement on Form S-3 filed with the Commission on October 15,
1997 (No. 333-37955).
(k) REPORTING REQUIREMENTS. The Companies, during the period when
the Prospectuses are required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the 1934 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. SDC II will pay or cause to be paid all expenses incident
to the performance of the Companies' obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters, the Warrant
Agreement and such other documents as may be required in connection with the
offering, purchase, sale, issuance or delivery of the Units, (iii) the
preparation, issuance and delivery of the certificates for the Units to the
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Units to the
Underwriters and the transfer of the Units between the U.S. Underwriters and the
International Managers, (iv) the fees and disbursements of the Companies'
counsel, accountants and other advisors, (v) the fees and disbursements of SDC's
counsel, accountants and other advisors, (vi) the qualification of the Units
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vii) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (viii)
the preparation, printing and delivery to the Underwriters of copies of the Blue
Sky Survey and any supplement thereto, (ix) the fees and expenses of any
transfer agent or registrar for the Units, (x) all charges of the Warrant Agent,
(xi) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Units, and (xii) the fees and expenses incurred in connection with the
listing of the Units, the SDC II Common Stock and the Warrants on the Nasdaq
National Market.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11, the Companies shall reimburse the Lead Managers for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
22
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The
obligations of the several International Managers hereunder are subject to
the accuracy of the representations and warranties of the Companies contained
in Section 1 hereof or in certificates of any officer of the Companies or any
Subsidiary delivered pursuant to the provisions hereof, to the performance by
the Companies of their covenants and other obligations hereunder, and to the
following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
International Managers. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A) or, if the Companies have elected to rely upon Rule 434, a Term Sheet
shall have been filed with the Commission in accordance with Rule 424(b).
(b) OPINION OF COUNSEL FOR THE COMPANIES. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for Dura and SDC
II, in form and substance satisfactory to counsel for the International
Managers, and, to the extent provided in Exhibit A hereto, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, General Counsel for Dura, together with signed or reproduced
copies of such letters for each of the other International Managers, to the
effect set forth in Exhibit A hereto.
(c) OPINION OF PATENT COUNSEL FOR THE COMPANIES. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Lyon & Lyon LLP (solely with respect to patents concerning
the ▇▇▇▇▇▇ product), patent counsel for the Companies, in form and
substance satisfactory to counsel for the International Managers, together
with signed or reproduced copies of such letter for each of the other
International Managers, to the effect set forth in Exhibit B hereto.
(d) OPINION OF REGULATORY COUNSEL FOR THE COMPANIES. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated as
of Closing Time, of Kleinfeld, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, regulatory counsel for
the Companies, in form and substance satisfactory to counsel for the
International Managers, together with signed or reproduced copies of such
letter for each of the other International Managers, to the effect set
forth in Exhibit C hereto.
(e) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. At Closing
Time, the U.S. Representatives shall have received the favorable opinion,
dated as of Closing Time,
23
of Shearman & Sterling, counsel for the International Managers, together
with signed or reproduced copies of such letter for each of the other
International Managers, with respect to the matters set forth in clauses of
Exhibit A hereto. In giving such opinion, such counsel may rely, as to all
matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States upon the
opinions of counsel satisfactory to the Lead Managers. Such counsel may
also state that, insofar as such opinion involves factual matters, they
have relied, to the extent they deem proper, upon certificates of officers
of the Companies and the Subsidiaries and certificates of public officials.
(f) OFFICERS' CERTIFICATE. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any Dura Material Adverse Effect,
SDC Material Adverse Effect or SDC II Material Adverse Effect, whether or
not arising in the ordinary course of business, and the Lead Managers shall
have received a certificate of the President or a Vice President of Dura
and of the chief financial or chief accounting officer of Dura, and the
President or a Vice President of SDC II and of the chief financial or chief
accounting officer of SDC II, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse effect, (ii) the
representations and warranties of Dura and SDC II set forth in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) each of Dura and SDC II
shall have complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time, and (iv) no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or are contemplated by the Commission.
(g) ACCOUNTANTS' COMFORT LETTERS. At the time of the execution of
this Agreement, the Lead Managers shall have received from each of Deloitte
& Touche LLP and [Ernst & Young], a letter, each dated such date, in form
and substance satisfactory to the Lead Managers, together with signed or
reproduced copies of such letters for each of the other Lead Managers,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(h) BRING-DOWN COMFORT LETTERS. At Closing Time, the Lead Managers
shall have received from each of Deloitte & Touche LLP and [Ernst & Young],
a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (g) of this
Section 5, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(i) APPROVAL OF LISTING. At Closing Time, the Units shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
24
(j) NO OBJECTION. The NASD has confirmed that it has not raised
any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(k) LOCK-UP AGREEMENTS. At the date of this Agreement, the
International Managers shall have received an agreement substantially in
the form of Exhibit D hereto signed by the persons listed on Schedule C
hereto.
(l) PURCHASE OF INITIAL U.S. UNITS. Contemporaneously with the
purchase by the International Managers of the Initial International Units
under this Agreement, the International Managers shall have purchased the
Initial U.S. Units under the U.S. Purchase Agreement.
(m) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION UNITS. In the
event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International
Option Units, the representations and warranties of the Companies contained
herein and the statements in any certificates furnished by the Companies
and any Subsidiary hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Lead Managers shall
have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date
of Delivery, of the President or a Vice President of each of the
Companies and of the chief financial or chief accounting officer of
each of the Companies confirming that the certificate delivered at the
Closing Time pursuant to Section 5(f) remains true and correct as of
such Date of Delivery.
(ii) OPINIONS OF COUNSEL FOR THE COMPANIES. The favorable
opinions of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Companies, Lyon & Lyon, patent counsel for the Companies, and
Kleinfeld, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, regulatory counsel for the Companies,
each in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Units to be purchased on such Date of Delivery
and otherwise to the same effect as the opinions required by Sections
5(b), 5(c) and 5(d).
(iii) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. The
favorable opinion of Shearman & Sterling, counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Units to be purchased on such Date of Delivery
and otherwise to the same effect as the opinion required by Section
5(e).
(iv) BRING-DOWN COMFORT LETTERS. A letter from Deloitte &
Touche LLP and [Ernst & Young], in form and substance satisfactory to
the Lead Managers and dated such Date of Delivery, substantially in
the same form and substance as the
25
letters furnished to the Lead Managers pursuant to Section 5(h),
except that the "specified date" in the letters furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(n) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Units as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Companies in connection
with the issuance and sale of the Units as herein contemplated shall be
reasonably satisfactory in form and substance to the U.S. Representatives
and counsel for the U.S. Underwriters.
(o) TERMINATION OF AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase
of International Option Units, on a Date of Delivery which is after the
Closing Time, the obligations of the International Managers to purchase the
relevant International Option Units, may be terminated by the Lead Managers
by notice to the Companies at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS. The Companies, jointly and
severally, agree to indemnify and hold harmless each International Manager and
each person, if any, who controls any International Manager within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or
26
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 6(d) below) any such settlement
is effected with the written consent of the Companies; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Companies by
any International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto).
(b) INDEMNIFICATION OF THE COMPANIES AND DIRECTORS AND OFFICERS. Each
International Manager severally agrees to indemnify and hold harmless the
Companies, their directors, each of their officers who signed the Registration
Statement, and each person, if any, who controls either of the Companies within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section 6, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary International prospectus or the Internatinal Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Companies by such International Manager
through the Lead Managers expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Companies. An indemnifying party
may
27
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Companies on the
one hand and the International Managers on the other hand from the offering of
the Units pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Companies on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Companies on the one hand and the
International Managers on the other hand in connection with the offering of the
Units pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Units pursuant to
this Agreement (before deducting expenses) received by the
28
Companies and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Units as set
forth on such cover.
The relative fault of the Companies on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Companies or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Companies and the International Managers agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the International Managers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
7. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Units underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such International
Manager has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of each of the Companies, each officer
of each of the Companies who signed the Registration Statement, and each person,
if any, who controls the Companies within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Companies. The International Managers' respective obligations to contribute
pursuant to this Section are several in proportion to the number of Initial
International Units set forth opposite their respective names in Schedule A
hereto and not joint.
29
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Companies or any Subsidiary
submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Companies, and
shall survive delivery of the Units to the International Managers.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Lead Managers may terminate this Agreement,
by notice to the Companies, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the International Prospectus, any Dura
Material Adverse Effect or SDC II Material Adverse Effect, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Lead Managers, impracticable to market the Units or to enforce
contracts for the sale of the Units, or (iii) if trading in any securities of
the Companies has been suspended or materially limited by the Commission or the
Nasdaq National Market, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York or California authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. If
one or more of the U.S. Underwriters shall fail at Closing Time or a Date of
Delivery to purchase the Units which it or they are obligated to purchase
under this Agreement (the "Defaulted Units"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Units in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Lead Managers shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Units does not exceed 10% of the
number of Units to be purchased on such date, the non-defaulting
International Managers shall be
30
obligated, each severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
International Managers, or
(b) if the number of Defaulted Units exceeds 10% of the number of
Units to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after Closing Time, the obligation of the
International Managers to purchase and of the Company to sell the U.S.
Option Units to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting U.S.
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Companies to sell the relevant U.S. Option
Units, as the case may be, either the Lead Managers or the Companies shall have
the right to postpone Closing Time or the relevant Date of Delivery, as the case
may be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectuses or in any other documents
or arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section.
SECTION 11. DEFAULT BY THE COMPANIES. If the Companies shall fail at
Closing Time or at the Date of Delivery to sell the number of Units that they
are obligated to sell hereunder, then this Agreement shall terminate without
any liability on the part of any nondefaulting party; PROVIDED, HOWEVER, that
the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and
effect. No action taken pursuant to this Section 11 shall relieve the
Companies from liability, if any, in respect of such default.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇; notices to either of
the Companies shall be directed to them at:
Dura Pharmaceuticals, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇- 4204
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
31
with a copy to:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ "▇" ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the International Managers and the Companies and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the Companies and their respective
successors and the controlling persons and officers and directors referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
International Managers and the Companies and their respective successors, and
said controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Units from any International Manager shall be deemed to be a
successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
32
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to each of Dura and SDC II a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the U.S. Underwriters, Dura and SDC II in accordance with its
terms.
Very truly yours,
DURA PHARMACEUTICALS, INC.
By:
--------------------------
Title:
▇▇▇▇▇▇ DEVELOPMENT CORPORATION II, INC.
By:
--------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:
--------------------------
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto.
33
SCHEDULE A
Number
of Initial
International
Name of International Underwriter Units
--------------------------------- -------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ International . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation . . . . . .
-------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-------------
-------------
Sch A - 1
SCHEDULE B
▇▇▇▇▇▇ DEVELOPMENT CORPORATION II, INC.
DURA PHARMACEUTICALS, INC.
Units
---------
Each Unit Consisting of
One Share of Common Stock of ▇▇▇▇▇▇ Development Corporation II, Inc.
and One Warrant
to Purchase One-Fourth of One Share of Common Stock of Dura
Pharmaceuticals, Inc.
1. The initial public offering price per Unit, determined as provided in
Section 2, shall be $______.
2. The purchase price per International Unit to be paid by the
International Managers shall be $______, being an amount equal to the initial
public offering price set forth above less $______ per Unit.
3. The exercise price of the Warrants shall be $______ per share of Dura
Common Stock.
Sch B - 1
SCHEDULE C
[List of persons and entities
subject to lock-up]
Sch C - 1
EXHIBIT A
FORM OF OPINION OF COUNSEL FOR DURA, SDC II and SDC
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
[For purposes of this opinion, to be delivered at the Closing Time, the
term "Subsidiaries" includes SDC.]
(i) Each of Dura, and SDC II has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(ii) Each of Dura, and SDC II has full corporate power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement and Prospectuses and, to enter into and perform its
obligations under the U.S. Purchase Agreement and the International Purchase
Agreement.
(iii) Each of Dura, and SDC II is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Dura Material Adverse Effect or a
SDC II Material Adverse Effect, as the case may be (which opinion as to Dura may
be given by the General Counsel of Dura).
(iv) The authorized capital stock of Dura conforms as to legal matters in
all material respects to the description thereof contained in the Registration
Statement and Prospectuses. The outstanding shares of capital stock of Dura
have been duly and validly authorized and issued, are, to our knowledge, fully
paid and non-assessable, and are not subject to any preemptive rights (the
opinion called for by the last sentence of this paragraph (iv) may be given by
the General Counsel of Dura).
(v) The authorized, capital stock of SDC II is as set forth in the
Prospectuses under the caption "SDC II Capitalization", and the SDC II Common
Shares conform in all material respects to the descriptions thereof contained in
the Registration Statement and Prospectuses under the caption "Description of
SDC II Capital Stock".
(vi) The outstanding shares of capital stock of SDC II have been duly and
validly authorized and issued, are, to our knowledge, fully paid and
nonassessable, and are not subject to any preemptive rights.
(vii) The Warrant Agreement has been duly authorized, executed and
delivered by Dura and constitutes a legal, valid and binding obligation of Dura,
enforceable against Dura in accordance to its terms.
A-1
(viii) The issue of the Warrants has been duly authorized by Dura and, when
duly executed, issued and delivered by Dura and countersigned by the Warrant
Agent and when payment of the purchase price for the Units has been made, the
Warrants will constitute valid and binding obligations of Dura entitled to the
benefits of the Warrant Agreement. The Warrants are not subject to the
preemptive rights of any shareholder of Dura. The Warrants conform as to legal
matters in all material respects to the description thereof contained in the
Registration Statement and the Prospectuses under the caption "Description of
the Warrants."
(ix) The shares of Dura Common Stock issuable upon exercise of the Warrants
have been duly and validly reserved for the issuance and, when issued upon such
exercise and upon payment of the exercise price, in accordance with the terms of
the Warrant Agreement, will be duly authorized, validly issued, fully paid,
nonassessable, and will not be subject to any preemptive or similar rights of
any stockholder of Dura.
(x) The issuance of the SDC II Common Stock Shares has been duly authorized
and, when issued and paid for as part of the Units, will be validly issued,
fully paid and non-assessable. Such SDC II Common Stock is not subject to the
preemptive or similar rights of any stockholder of SDC II.
(xi) To our knowledge, the Subsidiaries, are Dura's sole subsidiaries.
Each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own or lease and its
properties and to conduct its business as described in the Registration
Statement and Prospectuses and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Dura Material Adverse Effect; all
of the issued and outstanding capital stock of each Subsidiary and SDC has been
duly and validly authorized and issued, are fully paid and non-assessable and,
to the best of our knowledge and information is owned by Dura free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity; and
none of the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive rights of any securityholder of such Subsidiary (the
opinion called for by the last sentence of this paragraph (ix) may be given by
the General Counsel of Dura).
(xii) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by Dura and SDC II.
(xiii) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the Act. Any required filing of the
Prospectuses pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b). To our knowledge, no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the Act.
A-2
(xiv) All descriptions in the Prospectuses of agreements and other
instruments to which the Company or the Subsidiaries are a party are accurate in
all material respects. To our knowledge, no breach or default exists under any
agreement or instrument to which the Company, any Subsidiary is a party and
which is filed as an Exhibit to the Registration Statement or incorporated by
reference therein (the opinion called for by the last sentence of this paragraph
(xiii) may be given by the General Counsel of the Company).
(xv) The form of certificate used to evidence the Units complies in all
material respects with all applicable statutory requirements, and the
requirements of the Nasdaq National Market.
(xvi) To our knowledge, there is no legal or governmental proceeding
pending or threatened to which Dura, any Subsidiary or SDC II is a party or to
which any of the properties of Dura, any Subsidiary or SDC II is subject that is
required to be described in the Registration Statement or the Prospectuses and
is not so described, or of any statute or regulation, contract or other document
that is required to be described in the Registration Statement or the
Prospectuses or to be filed as an exhibit to the Registration Statement that is
not described or filed as required.
(xvii) The statements in the Registration Statement under Items 14 and 15,
to the extent that such statements constitute matters of law, summaries of
documents contained therein, summaries of legal matters have been prepared by or
reviewed by us and are correct in all material respects.
(xviii) None of Dura, any Subsidiary or SDC is in violation of its charter
or by-laws and no default by Dura or any subsidiary exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectuses or filed or incorporated by reference
as an exhibit to the Registration Statement (which opinion as to Dara may be
given by the General Counsel of Dura).
(xix) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than under the Act and the 1933 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which no opinion is
requested or given) is necessary or required in connection with the due
authorization, execution and delivery of the Units, the Dura SDC II Common
Stock, the Warrants, or the Dura Common Stock issuable upon exercise of the
Warrants.
(xx) The execution, delivery and performance by Dura of its obligation
under the U.S. Purchase Agreement or the International Purchase Agreement and
the Warrant Agreement will not contravene any provision of applicable law or the
certificate of incorporation or bylaws of Dura or any Subsidiaries, or, to our
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over Dura or any of its property or any
A-3
Subsidiaries or any of their property, or, to our knowledge, constitute a breach
or default or a Dura Repayment Event (as defined in section 1(a)(xi) of the
Purchase Agreement) under any agreement or other instrument binding upon Dura or
any of the Subsidiaries, to which Dura or any of the Subsidiaries is a party and
filed as an exhibit to the Registration Statement or an Incrorporated Document.
(xxi) The execution and delivery of, and the performance by Dura of its
obligations under, the U.S. Purchase Agreement, the International Agreement and
the Warrant Agreement will not contravene any provision of applicable law or the
certificate of incorporation or bylaws of Dura or any Subsidiaries, or, to our
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over Dura or any of its property or any Subsidiaries
or any of their property, or, to our knowledge, constitute a breach or default
or a Dura Repayment Event (as defined in section 1(a)(xi) of the Purchase
Agreement) under any agreement or other instrument binding upon Dura or any of
the Subsidiaries and filed as an exhibit to the Registration Statement or an
Incorporated Document.
(xxii) Each of the Major Agreements has been duly authorized, executed and
delivered by Dura, SDC, DDSI and SDC II as applicable.
(xxiii) To our knowledge, no holders of securities of Dura have rights
against Dura which have not been waived to the registration of shares of Dura
Common Stock or other securities, because of the filing of the Registration
Statement by Dura or the offering contemplated thereby.
(xxiv) The Units have been duly authorized for quotation on the Nasdaq
National Market, subject to notice of official issuance.
(xxv) The statements in the Registration Statement and Prospectuses under
the caption "Federal Tax Consequences" to the extent they constitute matters of
law or legal conclusions with respect thereto, have been prepared or reviewed by
us and are correct in all material respects.
(xxvi) Neither Dura nor SDC II is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the 1940
Act.
We may state, however, that based upon our participation as desribed
in the preceding paragraph, (i) we believe that each of the Incorporated
Documents (except for financial statements and schedules and other financial
data included therein or omitted therefrom, as to which no opinion is requested
or given), when they became effective or were filed with the Commission in all
material respects with the requirements of the Act and the 1934 Act, as
applicable, and the rules and regulations of the Commission thereunder; (ii) we
believe that the Registration Statement, the Prospectus and each amendment or
supplement to the Registration Statement and Prospectus (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which no opinion is requested or
given), as of their respective effective or issue dates, complied as to form in
all
A-4
material respects with the requirement of the Act and the applicable rules and
regulations of the Commission thereunder; (iii) we confirm that nothing has come
to our attention that has caused us to conclude that (except for financial
statements and schedules and other financial data included or incorporated by
referrence therein or omitted therefrom, as to which we need make no statement)
the Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), at the time such
Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in the lights
of the circumstances under which they were made, not misleading or that (except
for financial statements and schedules and other financial data included or
incorporated by reference therein or omitted therefrom, as to which we need make
no statement) the Prospectus, on the date hereof, includes an untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were made
not misleading.
In rendering such opinion, such counsel may rely (A) upon the opinions
of Lyon & Lyon and Kleinfeld, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
With respect to the matters opined upon by each, and (B), as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of Dura or SDC II and public officials.
Such opinion shall not state that it is to be governed or qualified by, or that
it is otherwise subject to, any treatise, written policy or other document
relating to legal opinions, including, without limitation, the Legal Opinion
Accord of the ABA Section of Business Law (1991).
A-5
EXHIBIT B
FORM OF OPINION OF PATENT COUNSEL
FOR DURA AND SDC II DELIVERED PURSUANT TO SECTION 5(C)
(i) The Company owns U.S. patents and U.S. Foreign patent
applications which are directed to the ▇▇▇▇▇▇ and to certain uses of the
▇▇▇▇▇▇ product necessary to conduct the business of Dura and ▇▇▇▇▇▇ Corp.
II as described in the Prospectuses. With regard to the business presently
and as proposed to be conducted by teh Company and ▇▇▇▇▇▇ Corp. II relating
to the ▇▇▇▇▇▇ product as described in the Registration Statement and the
Prospectuses, and, except as described therein, we have not received any
notice of infringement of or conflict with, and does not otherwise know of
any basis for notice of any such infringement of or conflict with, asserted
rights of others with respect to any patents, trademarks, service marks,
trade names, copyrights, technology or know-how relating to the Spiro
product.
(ii) To the extent that the statements relating to the ▇▇▇▇▇▇
product contained in the Registration Statement and Prospectuses under the
subheadings "Risk Factors--Business Risks Related to ▇▇▇▇▇▇ Corp. II and
Dura--Uncertainty Regarding Patents and Proprietary Technology;
Unpredictability of Patent Protection - ▇▇▇▇▇▇ Corp. II," "Risk Factors -
Business Risks Related to ▇▇▇▇▇▇ Corp. II and Dura" and the first paragraph
of "Business of ▇▇▇▇▇▇ Corp. II -- Patents" refer to opinions of counsel or
matters of law, patents or patent applications or purport to summarize the
status of litigation or the provisions of statutes, regulations, contracts,
agreements or other documents, such statements (A) have been prepared or
reviewed by us and accurately reflect the status of any such patent
applications, litigation, the provisions purported to be summarized and any
of our opinions and (B) do not contain any untrue statements of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
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EXHIBIT C
FORM OF OPINION OF REGULATORY COUNSEL
FOR DURA AND SDC II
TO BE DELIVERED PURSUANT
TO SECTION 5(d)
(i) The descriptions in the Registration Statement of the statutes,
regulations and legal or governmental proceedings or procedures relating to the
FDA and the approval process relating to Dura's and SDC II's products are
accurate in all material respects and are a fair summary of those statutes,
regulations, proceedings or procedures.
(ii) Nothing has come to our attention that leads us to believe that the
descriptions of federal laws, regulations or rules relating to the manufacture
or sale of the Company's products and the approval process relating thereto
contained in the Registration Statement and the Prospectus, including, without
limitation, the portions of the Registration Statement and Prospectus entitled
"Risk Factors - Business Risks Related to ▇▇▇▇▇▇ Corp, II and Dura - Government
Regulation; No Assurance of FDA Approval," and "Business of Dura - Government
Regulation," contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statement
therein not misleading.
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EXHIBIT D
November ____ , 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
as Lead Managers of the several International
Managers of the several U.S. Underwriters
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Re: Proposed Public Offering by Dura Pharmaceuticals, Inc. and ▇▇▇▇▇▇
Development Corporation II
Ladies and Gentlemen:
The undersigned, a stockholder and/or officer and/or director of Dura
Pharmaceuticals, Inc. ("Dura") understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, and
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ (each, an "International Manager" and, together,
the "International Managers") propose to enter into an International Purchase
Agreement (the "International Purchase Agreement") with the Companies providing
for the public offering of units each composed of one share of common stock, par
value $.001 per share, of SDC II and one warrant, which will entitle the
registered owner thereof to purchase one share of common stock, par value $.001
per share, of Dura ("Dura Common Shares"). In recognition of the benefit that
such an offering will confer upon the undersigned as a stockholder and an
officer and/or director of one or both of the Companies, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with the International Managers that,
during a period of 90 days from the date of the International Purchase
Agreement, the undersigned will not, without the prior written consent of the
International Managers, directly or indirectly, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer any Dura Common Shares or any securities
convertible into or exchangeable or exercisable for Dura Common Shares, whether
now owned or hereafter acquired by the undersigned or with respect to which the
undersigned has or hereafter acquires the power of disposition, or file any
registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in
D-1
whole or in part, directly or indirectly, the economic consequence of ownership
of Dura Common Shares, whether any such swap or transaction is to be settled by
delivery of Dura Common Shares or other securities, in cash or otherwise.
Very truly yours,
Signature:
-----------------------------
Print Name:
----------------------------
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